Susan J. Lefaver v. Board of Assessors of the City of North Adams (June 7, 2011)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD



SUSAN J. LEFAVER		 v.	     BOARD OF ASSESSORS OF
  			                      THE CITY OF NORTH ADAMS 

  Docket No. F306880			  Promulgated:
							  June 7, 2011


	This is an appeal filed under the formal procedure pursuant to G.L. c. 58A, § 7 and G.L. c. 59, §§ 64 and 65, from the refusal of the appellee Board of Assessors of the City of North Adams ("assessors") to abate a tax on certain real estate in North Adams assessed to Susan J. Lefaver ("appellant") under G.L. c. 59, §§ 11 and 38, for fiscal year 2010.
	Commissioner Mulhern ("Presiding Commissioner") heard this appeal under G.L. c 58A, § 1 and 831 CMR 1.20 and issued a single-member decision for the appellant.
	These findings of fact and report are made pursuant to a request by the appellant under G.L. c. 58A, § 13 and 831 CMR 1.32.

	Susan J. Lefaver, pro se, for the appellant.
	Thomas Manuel, Esq. for the appellee.

FINDINGS OF FACT AND REPORT	
	On the basis of exhibits and testimony offered at the hearing of this appeal, the Presiding Commissioner made the following findings of fact.
On January 1, 2009, the appellant was the assessed owner of an improved parcel of real estate located at 690 State Road in North Adams ("subject property"). For fiscal year 2010, the assessors valued the subject property at $147,000 and assessed a tax thereon, at a rate of $12.44 per $1,000, in the amount of $1,828.68. In accordance with G.L. c. 59, § 57C, the appellant paid the tax due without incurring interest, and in accordance with G.L. c. 59, § 59, the appellant timely filed an Application for Abatement with the assessors on January 26, 2010. The assessors denied the appellant's abatement application on March 17, 2010, and on June 1, 2010, the appellant seasonably filed an appeal with the Appellate Tax Board ("Board"). On the basis of these facts, the Presiding Commissioner found and ruled that the Board had jurisdiction to hear and decide this appeal. 
The subject property, which faces State Road, a major thoroughfare also known as Route 2, consists of a 0.453-acre parcel of real estate improved with a two-family home containing 2,159 square feet of finished living area. The dwelling, which is in average condition, has eight rooms divided between two units, one of which has two bedrooms, and the other, one bedroom. Each unit has a kitchen and a full bath. The dwelling's exterior is clad in wood shingles, and it has an asphalt roof.
The appellant argued that the subject property had no monetary value. The appellant based her conclusion almost exclusively on her belief that contamination affecting the properties at 700 and 708 State Road, which are contiguous parcels separated from the subject property by a street known as Chantilly Avenue, had spread to the subject property, rendering it valueless. 
The appellant submitted various documents to support her argument, certain of which indicated that the property at 708 State Road, a former gas station currently operating as an auto repair shop, had been contaminated by gasoline leakage from a storage tank in the early 1990s. Other documents relating to 708 State Road included a copy of a letter dated August 9, 2009, to the Massachusetts Department of Environmental Protection ("DEP") from Norfolk-Ram, an engineering firm involved with environmental testing and remediation efforts at the property. The letter referenced a "Response Action Outcome Report" relating to 708 State Road ("RAO") dated February 8, 2006, that Norfolk-Ram had prepared after completion of post-remediation sampling at the property. The RAO, which was combined with a "Release Abatement Measure Report" to form a single document, discussed in detail testing and remediation activities performed at 708 State Road and concluded, based on several considerations, that "a 'Condition of no Significant Risk' to public safety exist[ed] at the Site [then] and into the foreseeable future." 
The appellant also submitted a copy of a report dated December 14, 2009, from the engineering firm of Tighe & Bond to DEP detailing "site assessment activities performed in response to a historical release of chlorinated solvents" from the drycleaners at 700 State Road. The report described placement of several "monitoring wells" and noted detection of vinyl chloride in a monitoring well "approximately 60 feet from a . . . residential property listed at 690 State Road." The report also stated that "additional assessment would be required to evaluate the potential for indoor air quality impacts from vapor intrusion into the buildings" at 708 State Street and the subject property.
In a memorandum to the Mayor of North Adams, the city's Chief Administrative Officer ("CAO") described "any contamination or clean-up activity" at 708, 700 and 690 State Road. Regarding contamination at and emanating from 700 State Road, the CAO stated: 
[DEP] supervised investigative work performed between October 2009 and February 2010. The data from this work showed that although the contamination was moving away from the property, it was also naturally degrading. One of the sampling wells located on Chantilly Avenue contained vinyl chloride. . . . Because this product has the potential for vapor intrusion, indoor air samples were collected from the LeFaver household at 690 State Road on February 16-17, 2010. No contaminants associated with the documented contamination were detected in the indoor air samples. Based on these findings, [DEP] has no current plans for additional assessment or clean-up activity related to the [drycleaners'] site at this time.

As for 708 State Road, the CAO stated:

[DEP] monitored a release of gasoline from a leaking underground storage tank to soil and groundwater in September, 1993. Two underground storage tanks were removed and contaminated soil has been removed from the parcel.  A DEP "Response Action Outcome" (RAO) statement was submitted . . . closing  that site . . . [DEP] performed a "screening level" audit of the RAO in October 2009 and no further action was taken by [DEP] following that review. 

	The memorandum made no reference to activity at the subject property beyond its description of air sample testing performed during February of 2010. 
Based on the record before it, the Presiding Commissioner found that the properties at both 700 and 708 State Road had been and to some degree remained contaminated. However, the evidence presented also indicated that remediation had been performed at 708 State Road, and that there was no ongoing or contemplated DEP action at either 700 or 708 State Road. Absent additional data or an expert opinion, neither of which was provided, the Presiding Commissioner could not determine if there remained contamination issues at 700 or 708 State Road which posed any risk to public safety or diminished the value of these properties, let alone the subject property. Moreover, the Presiding Commissioner found that the appellant provided insufficient evidence to establish that the subject property had been contaminated. Indeed, the only direct evidence relating to contamination of the subject property, the air samples tested during February of 2010, pointed to the opposite conclusion. 
The appellant also argued that contamination of the subject property resulted in denial of her applications for home equity loans which otherwise would have been approved. In support of this argument, the appellant submitted a "Statement of Credit Denial" from the Hoosac Bank dated July 14, 2009, which stated that the appellant's request for a line of credit had been denied "based on disclosed potential for hazardous contamination that has not been officially determined." The denial statement also explicitly stated, however, that the appellant herself disclosed the "potential for hazardous contamination." The Presiding Commissioner therefore found that the credit denial, which resulted from the appellant's own unsubstantiated beliefs, was of little probative value.   
Finally, the Presiding Commissioner found that the appellant presented no evidence to establish that the subject property suffered a diminution in value resulting from the contamination at 700 and 708 State Road or from the operation of the auto repair shop at 708 State Road, which the appellant claimed violated local zoning laws. Given this finding and the appellant's failure to demonstrate contamination of the subject property, the Presiding Commissioner found and ruled that the appellant failed to offer persuasive evidence that the subject property's assessed value exceeded its fair cash value on the relevant assessment date.
Notwithstanding the foregoing, the Presiding Commissioner found that evidence provided by the assessors indicated that the subject property was overvalued for fiscal year 2010. In particular, the assessors submitted property record cards for nine purportedly comparable properties in the area. Of these, the Presiding Commissioner found that six of the properties, each of which featured a two-family dwelling, were comparable to the subject property. The properties were in similar condition, their finished living areas ranged from 1,788 square feet to 2,944 square feet and, with the exception of one significantly larger property, their parcel sizes from 0.11 acres to 0.26 acres. The properties' average sale price was $128,500. Taking into account various differences between these properties and the subject property and, in particular the subject property's location on a busy thoroughfare, the Presiding Commissioner derived an indicated value for the subject property of $125,000 for fiscal year 2009. Thus, the Presiding Commissioner found and ruled that the fair cash value of the subject property was $22,000 less than its assessed value of $147,000.
Accordingly, the Presiding Commissioner issued a decision for the appellant in this appeal and ordered an abatement in the amount of $273.68.

OPINION
Assessors are required to assess real estate at its fair cash value.  G.L. c. 59, § 38.  Fair cash value is defined as the price on which a willing seller and a willing buyer in a free and open market will agree if both of them are fully informed and under no compulsion.  Boston Gas Co. v. Assessors of Boston, 334 Mass. 549, 566 (1956).
	The appellant has the burden of proving that property has a lower value than that assessed. "'The burden of proof is upon the petitioner to make out its right as [a] matter of law to [an] abatement of the tax.'" Schlaiker v. Assessors of Great Barrington, 365 Mass. 243, 245 (1974) (quoting Judson Freight Forwarding Co. v. Commonwealth, 242 Mass. 47, 55 (1922)). 
	In the present case, the Presiding Commissioner found and ruled that the appellant's evidence failed to establish that the subject property had a lower value than its assessed value for fiscal year 2010. While the appellant revealed that there was contamination at 700 and 708 State Road, she did not demonstrate ongoing contamination issues that posed a risk to public safety, nor did she establish that any form of contamination had spread to her property. Finally, the appellant did not present evidence to establish that the value of the subject property had been diminished as a result of contamination at 700 and 708 State Road or the operation of an auto repair shop at 708 State Road.   
	Notwithstanding the appellant's failure to establish the subject property's lower value, the Presiding Commissioner, relying on the entire record, found and ruled that the assessed value of the subject property exceeded its fair cash value for fiscal year 2010. See, e.g., General Electric Co. v. Assessors of Lynn, 393 Mass 591, 599-600 (1984).
	As with decisions of the Board, the Presiding Commissioner's "determination must be made 'upon consideration of the entire record.'" New Boston Garden Corp. v. Assessors of Boston, 383 Mass. 456, 466 (1981) (quoting Cohen v. Board of Registration in Pharmacy, 350 Mass. 246, 253 (1966), quoting from G.L. c 30A, § 14 (8) (State Administrative Procedure Act)). Further, the Presiding Commissioner is "entitled to 'select the various elements of value as shown by the record and from them form . . . [his] own independent judgment.'" General Electric Co. 393 Mass. at 605 (quoting North American Philips Lighting Corp. v. Assessors of Lynn, 392 Mass. 296, 300 (1984))(additional citation omitted). 
The fair cash value of property may be determined by recent sales of comparable properties in the market. Sales of comparable realty in the same geographic area and within a reasonable time of the assessment date generally contain probative evidence for determining the value of the property at issue.  Graham v. Assessors of West Tisbury, Mass. ATB Findings of Fact and Reports 2008-321, 400 (citing McCabe v. Chelsea, 265 Mass. 494, 496 (1929)), aff'd, 73 Mass. App. Ct. 1107 (2008). When comparable sales are used, allowances must be made for various factors which would otherwise cause disparities in the comparable properties' sale prices. See Pembroke Industrial Park Co., Inc. v. Assessors of Pembroke, Mass. ATB Findings of Fact and Reports 1998-1072, 1082.  
Consistent with the cited authority, the Presiding Commissioner considered evidence submitted by the assessors relating to six multi-family properties in the area, which the Presiding Commissioner found were comparable to the subject property. The record indicated the properties' condition, finished living areas, sale prices, and parcel sizes. The Presiding Commissioner took into account various differences between the properties and the subject property, with emphasis on the subject property's location on a busy thoroughfare, and derived an indicated value for the subject property of $125,000 for fiscal year 2010. Thus the Presiding Commissioner found and ruled that the subject property's assessed value exceeded its fair cash value by $22,000.
Accordingly, the Presiding Commissioner issued a decision for the appellant in this appeal and ordered an abatement in the amount of $273.68.


      				   APPELLATE TAX BOARD

By:_______________________________
   Thomas J. Mulhern, Commissioner




A true copy,

Attest: __________________________
      Clerk of the Board

 The August 2009 letter stated that it did not address migration of tetrachloroethylene, a drycleaning solvent, from 700 State Road, the former site of a drycleaning establishment.
 Vinyl chloride is a by-product of tetrachloroethylene.
 This appears to be the vinyl chloride that Tighe & Bond noted had been detected near the subject property.
 The assessors presented one other multi-family property for consideration, but the Presiding Commissioner excluded this property from his analysis based on the property's inferior condition.

ATB 2011-489